LJIL Symposium Vol 25-3: Wording in International Law: A Response

[Jean d’Aspremont is Associate Professor of International Law, Amsterdam Centre for International Law (ACIL), University of Amsterdam and Editor-in-chief of the Leiden Journal of International Law]

This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.

Debate has always been a central medium of thought-making and, hence, knowledge-production in social sciences. This is why, albeit aware of the pitfalls of such platforms (see my EJIL:Talk! post), I initiated, with the help of Dov Jacobs, a partnership between the Leiden Journal of International Law and Opinio Juris. It is the very same rationale that propelled the observations on the wording techniques in international law that are under discussion today. Nourishing – predominantly self-reflective – debates was indeed the avowed goal of this piece to which Francesco Messineo and Michael Kearney reacted, thereby further contributing to the deliberative agenda behind it. I am thus extremely grateful to them for taking some of their very precious summer time (probably the moment of the year the most conducive to reading and thinking). I am similarly very appreciative of the fact that both authors took pains to venture into (and play with) some of the wording techniques described in this editorial, doing so with great mastery and uncontested brio.

Although deeply thankful for their effort, I bemoan the extent to which Francesco and Michael, under the – conventionally necessary – veil of disagreement, fundamentally concur with the core ideas defended in the paper. Indeed, there neither of them seem to completely deny the competitive dynamics at play in the epistemic community of international law as well as the cosmetic, eye-catching, erudition-magnifying techniques which are deployed by the members of that community in their attempts to ensure that the information they produced is received and validated as proper knowledge by their peers. This being said, the readers of this blog ought not be anxious. Voicing disagreement is congenital to expert blogging and there is amble material to bicker about. Allow me to – completely arbitrarily and out of personal convenience – pick those points I deem the most fundamental and which I – very selfishly – would enjoy elaborating on (after all, legal blogging is a structurally and emotionally selfish exercise).

First, both Francesco and Michael seem to regret the overly pessimistic light cast by the paper on the current state of the profession and my alleged lamenting of the foundering of a profession that spends too much time varnishing and polishing its nails in a beauty salon. As indicated above, this editorial was solely meant to buoy self-reflection by drawing the attention to some growing habits which we all – consciously or unconsciously – are tempted to indulge into. It was never intended to depict with a grim dark brush the abiding competition for naming between scholars, for I see it as inherent in social science. On the contrary, the paper seeks to demonstrate that such argumentative and semantic competition is a fact of the life of that specific professional community and certainly does not constitute a sign of that it is growing gangrenous (in section 3, I write: “Subject to the occasional venting of limited express disapprovals, the following depiction of the contemporary practices of wording by international legal scholars is generally not meant to be judgmental”).

Unsurprisingly, both Francesco and Michael voiced some regret that I limited myself to listing the sins but abstained from mentioning the sinners (or at least illustrations of the sins). I think this charge is entirely fair. Let me be clear on this point. I purposely refused to provide concrete examples or names of culprits, not only because it would have been a “breach of the etiquette” as Michael elegantly puts it and because it would have undoubtedly exposed me to professional, reputational and institutional retaliations. It is more simply that it would not have served any purpose. What would have been the added value of illustrating these techniques of textual and argumentative reputation-building? It would have conveyed the impression that I am judgmental and looking down at those indulging in those techniques while myself resorting to some of them occasionally. Isn’t the coining of the expression “wordfare” the very embodiment of one of these techniques? Although I never hoped that the term “wordfare” would become a term of art and would enter the vocabulary of our self-reflection, I am happy that such a neologism led Michael to take pains to unearth the etymology of the term ‘(war)fare’ which he has so often been using and which we have, in the past, exchanged extensively about.

A few words on Francesco’s insightful gender-related observation ought to be formulated. Although none of us can seriously claim to have the expertise nor the statistics to draw any conclusion in this respect, it certainly is a point that requires consideration. In my view, it cannot be excluded that the current gender configuration of the epistemic community of international law impinges on the extent, types, expressions, manifestations and effects of the competitive dynamics of that professional community described in the paper. Francesco – very wisely – falls short of directly grounding the “wordfare” into the current – very deplorable – one-gender domination of the epistemic community of international law and – avoiding taking any risk – rather traces it back to a lack of diversity in the discipline. Albeit acknowledging my total ignorance of (the weight and extent of) such sociological and biological patterns of those gender biases, I can only wish that such question be further investigated. Yet, in my view, cognizing precisely those gender-driven processes requires the expertise and assistance of sociologists. Unfortunately, we have not found any sociologist deeming the professional community of international law of sufficient interest to embark on a research on such patterns and dynamics in the same vein as Bourdieu did with the French legal profession a few decades ago. In that sense, it seems that international lawyers, despite the tremendous effort and inspiring scholarship of authors like Hilary Charlesworth or Christine Chinkin, have not excelled at showing sociologists that their professional community is a micro social system that is worthy of sociological research. This is very regrettable. In fact, as long as we lack such serious sociological studies on the action of those gender-driven forces described in the paper and their relations with gender configuration of the profession, many of us will continue to improvise themselves as sociologists and draw hasty and uninformed conclusions – like the editorial discussed here contain many – about intricate phenomena which we are unable to apprehend, cognize, describe and, above all, analyze.

Michael rightly engaged with the question of the social identity which, according to the paper under discussion, informs the necessity to preserve a common language without which there cannot be a epistemic community properly so-called. Michael takes issues with the existence of a social identity of the community of international legal scholars in a formal sense, nor that there is any necessity for such and argues that we may well have one foot in, another firmly out. On this very point, I can only concur with Michael that there is no need that such a social identity be formally expressed. Likewise, although I can understand why Michael interpreted the paper in such a way, I do not make the existence of a social identity per se a goal in itself. Yet, I argue that social identity is the expression of there being an epistemic community whilst such a community cannot be conceived in the absence of a common language between the members thereof. In that sense, the paper makes the claim that social identity and the need to seek to speak a common language are closely intertwined. It is true that, on that occasion the paper bemoans the extent to which, too often, members of the epistemic community of international law overlooks the extent to which the language they speak is foundational of the community they – sometimes unconsciously – belong to (on the idea of responsibility of international legal scholars, see the insights of Philip Allott). At the same time, it has become necessary to highlight that the paper falls short of arguing that this social identity – and thus the language that comes with it – are exclusive of others. In this respect the paper concurs with Michael’s contention. One does not speak the same language within each of the social – professional or not – clusters in which one operates. Every social actor speaks several languages. There is no reason why it should not be the same with the participants to the argumentative arena of the professional community of international law.

Finally, I would like to make an observation about the self-awareness of the professionals of international law which has been highlighted, albeit in different terms, by both commentators. This whole debate about these competitive dynamics and the techniques of wordfare – and above all, the perception thereof – inevitably lead to generational considerations. In that respect, there is no doubt that the generation Y – to which Francesco alludes – is the first generation with as much self-awareness in the history of our profession. This is not surprising. They were born when critical legal thinking was poised to be imported in the international legal scholarship and they came to Law School when the work of David Kennedy and Martti Koskenniemi was already a component of their curriculum in postgraduate studies. It is very fortunate that the growing self-awareness of the generation Y is now informing previous generations’ thinking as well – when it does not completely alienate them. Together with the generation Y, I think it is fair to say that we are not only all Legal Realists (as famously proclaimed by Michael Steven Green in Legal Realism as Theory of Law) but we are gradually all becoming Crits. Yet, techniques of deconstruction deployed in critical legal scholarship, albeit universally accessible, ought to be wielded with care and one cannot improvises oneself as a Crit. This is why, while being an endeavor to buoy self-awareness about our writing techniques, the editorial under discussion here also constitutes an invitation to renew our commitment to the production of serious knowledge about international law and tries to remind us that undecipherable, unstable or intimidating information will never be peer-validated as knowledge.

December 9, 2016Marrakech Express--Going Slow But Still on Track[Daniel Bodansky is Foundation Professor of Law at the Center for Law and Global Affairs’ Faculty Co-Director at the Sandra Day O'Connor College of Law; an Affiliate Faculty Member, Center for Law, Science & Innovation; an Affiliate Faculty Mem...

December 2, 2016Contextualizing the Debate on First Strikes
[Charles Kels is a major in the U.S. Air Force. His views do not reflect those of the Air Force or Department of Defense.]
The fascinating and edifying debate between Adil Haque (see here, here, here, and here) and, respectively, Deborah Pearlstei...

November 30, 2016The Corrosive Risks of Lawless Leadership
[Geoffrey S. Cornis Professor of Law at South Texas College of Law Houston in Houston Texas. Prior to joining the South Texas College of Law Houston faculty in 2005, Professor Corn served in the U.S. Army for 21 years as an officer, retiring in the ...